STATE v. CORTEZ ORTA (2026)

Defendant appeals from a judgment of conviction for numerous sex crimes committed against his stepdaughters, N and C, challenging his convictions for three counts of first-degree rape, ORS 163.375 (Counts 1-3), and one count of first-degree sexual abuse, ORS 163.427 (Count 8). Defendant assigns error to the jury instructions given regarding those counts, arguing that the trial court erred by failing to instruct the jury that each of those counts required a causal connection between the use of forcible compulsion and the charged sexual act. Defendant asserts that he preserved that issue below but alternatively asserts that it was a plain error. We conclude that the issue is not preserved, and, assuming without deciding that the trial court committed plain error, we decline to exercise our discretion to correct under plain error review. Accordingly, we affirm.

STATUTORY DEFINITIONS AND PROCEDURAL HISTORY

The background of the applicable criminal statutes and the procedural history frame our discussion regarding preservation. Defendant's assignment of error is limited to four convictions: three for first-degree rape and one for first-degree sexual abuse. For purposes of the charges at issue, those crimes are defined as follows:

“(1) A person who has sexual intercourse with another person commits the crime of rape in the first degree if:

“(a) The victim is subjected to forcible compulsion by the person.”

ORS 163.375.

“(1) A person commits the crime of sexual abuse in the first degree when that person:

“(a) Subjects another person to sexual contact and:

“* * * * *

“(B) The victim is subjected to forcible compulsion by the actor[.]”

ORS 163.427. Both crimes, as charged, required proof of “forcible compulsion,” which, in this case means to compel by “physical force.” ORS 163.305(1)(a).¹

The Oregon Supreme Court has explained that, in order to prove forcible compulsion, the state must prove that the act or acts constituting forcible compulsion “resulted in the sexual contact that is the focus of the charge, in the sense that it compelled the victim to submit to or engage in the contact.” State v. Marshall, 350 Or 208, 227, 253 P3d 1017 (2011). In other words, the physical force must have caused the sexual contact to be able to occur.

The jury was given the following instructions regarding the charges at issue in this appeal:

“RAPE IN THE FIRST DEGREE (as Charged in Counts 1-5)

“Oregon law provides that a person commits the crime of rape in the first degree if the person knowingly has sexual intercourse with another person and the person knowingly subjects the other person to forcible compulsion.

“In this case, to establish the crime of rape in the first degree, the state must prove beyond a reasonable doubt the following elements:

“(1) The act occurred on or between January 1, 2019 and March 6, 2019;

“(2) [Defendant] knowingly had sexual intercourse with [N]; and

“(3) [Defendant] knowingly subjected [N] to forcible compulsion.”

“* * * * *

“SEXUAL ABUSE IN THE FIRST DEGREE

“(Forcible Compulsion)

“Oregon law provides that a person commits the crime of sexual abuse in the first degree when the person knowingly subjects another person to sexual contact and the person knowingly subjects the other person to forcible compulsion.

“In this case, to establish the crime of sexual abuse in the first degree, the state must prove beyond a reasonable doubt the following elements:

“(1) The act occurred on or about * * * August 13, 2019;

“(2) [Defendant] knowingly subjected [C] to sexual contact;

“(3) [Defendant] knowingly subjected [C] to forcible compulsion.”

(Bold and uppercase in original.)

The jury was additionally provided with the following definitions of forcible compulsion and “knowingly and with knowledge”:

“Forcible compulsion—to compel by either (a) physical force or (b) a threat, express or implied, that places a person in fear of immediate or future death or physical injury to self or another person.”

“* * * * *

“KNOWINGLY AND WITH KNOWLEDGE

“A person acts ‘knowingly’ or ‘with knowledge’ if that person acts with an awareness that his conduct is of a particular nature.

“In counts 1 through 5 when used in the phrase ‘knowingly engaged in sexual intercourse with [N]’, ‘knowingly’ means that the defendant acts with an awareness that he engaged in sexual intercourse with [N]. When used in the phrase ‘knowingly subjected [N] to forcible compulsion,’ knowingly means that the defendant acts with awareness that he subjected [N] to forcible compulsion when he subjected her to sexual intercourse.

“* * * * *

“In counts 7 through 9 when used in the phrase ‘knowingly subjected [C] to sexual conduct by touching her vaginal area, mouth, genital area, a sexual or intimate part of [C],’ ‘knowingly’ means that the defendant acts with an awareness that he touched [C's] vaginal area, mouth, or genital area, and that those body parts are sexual or intimate parts of [C's] body. When used in the phrase ‘knowingly subjected [C] to forcible compulsion,’ knowingly means that the defendant acts with awareness that he subjected [C] to forcible compulsion when he subjected her to sexual contact.”

(Bold and uppercase in original; brackets omitted.)

As noted earlier, defendant challenges his convictions for three counts of first-degree rape and one count of first-degree sexual abuse.² On appeal, defendant asserts that the trial court erred by omitting from the jury instructions a direction that the jury must find a causal connection between the use of force and the sexual contact, and therefore argues that the jury instructions were incomplete for omitting a necessary element of the crimes. He maintains that he preserved that argument, but in the alternative, requests plain error review. The state asserts that defendant failed to preserve the argument below, and that any error was not plain or was harmless under the particular facts of this case.

PRESERVATION

We start with preservation and conclude that defendant did not preserve the argument he now urges on appeal. In general, “a party must provide the trial court with an explanation of [their] objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.” State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000).

At the close of evidence, and prior to closing arguments, the court engaged in a lengthy discussion with the parties regarding the jury instructions. Due to the volume of charges and the various theories relating to different counts, the court felt it necessary to clarify how the phrase “knowingly and with knowledge” was used in relation to each element of each count. The court decided to put a proposal together and get it to the parties that evening before reconvening in the morning to discuss any further changes that needed to be made. As part of that discussion, the court was looking at how “knowingly” was defined in relation to the forcible compulsion element, and the following exchange occurred:

“[DEFENSE COUNSEL]: I do think—if I can just jump in for a second—

“THE COURT: Mm-hmm (affirmative).

“[DEFENSE COUNSEL]: The forcible compulsion language, I think it should mention that the forcible compulsion was to further the sexual contact.

“THE COURT: Well, in the forcible compulsion definition—well, okay, we're not quite there yet but let me—

“[DEFENSE COUNSEL]: Okay. That might solve the problem then.

“THE COURT: All right. Well, let's—all right. Let's just move to definitions. So forcible compulsion, to compel—so to compel a person to engage in sexual intercourse by either physical threat or—or physical force or a threat—

“[PROSECUTOR]: I don't think that's—

“THE COURT: Is that what you're asking for?

“[DEFENSE COUNSEL]: I—I am. I don't think we need to put in a threat. It would confuse the jury since there's no allegations of threatening behavior. There's allegations of threatening behavior for disclosing, but all the allegations were simply the use of force.”

The conversation turned to whether the definition of forcible compulsion should include the various statutory definitions of how it could be completed, and whether a theory of forcible compulsion via threats applied in the case. The discussion never returned to whether the instructions needed to include a causation element between the forcible compulsion and the sexual acts. Defendant had no objection to the instructions for the rape or sexual abuse counts, and agreed that they looked correct as drafted. The following morning, defendant agreed that the court's proposed changes to the definition of “knowing and with knowledge” were fine. There were no further objections to any of the jury instructions.

On appeal, defendant asserts that the instructions for both first-degree rape and first-degree sexual abuse were incomplete because they did not include an instruction regarding the causal connection between forcible compulsion and the sexual act. He asserts that counsel's comment to the trial court that “the forcible compulsion language, I think it should mention that the forcible compulsion was to further the sexual contact” was sufficient to preserve the issue for appeal. We disagree with defendant's preservation argument.

Although defendant did raise the issue of the link between forcible compulsion and the sexual contact, he did not object to the presentation of the elements of the crimes at issue, did not propose any particular changes to the definition of forcible compulsion apart from the debate over whether to include threats or not, and had no objection to the court's expansive explanation of what “knowing or with knowledge” meant in relation to each of the elements of the crimes. When given the opportunity to raise any additional problems with the instructions, both at the end of the discussion one day and in the morning the following day, defendant did not raise the issue he now urges on appeal. Accordingly, we conclude that defendant's argument is unpreserved, and therefore turn to whether we review for plain error.

PLAIN ERROR

“Generally, an issue not preserved in the trial court will not be considered on appeal.” Wyatt, 331 Or at 341. However, we have discretion to correct a “plain” error. ORAP 5.45(1). An error is “plain” when it is an error of law, the legal point is obvious and not reasonably in dispute, and the error is apparent on the record without our having to choose among competing inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). Whether an error is “plain” is a question of law. State v. Gornick, 340 Or 160, 167, 130 P3d 780 (2006). If we conclude that a plain error occurred, the next question is whether it was harmless, as we cannot reverse a judgment based on harmless error. State v. Ortiz, 372 Or 658, 671, 554 P3d 796 (2024) (“Under Article VII (Amended), section 3, of the Oregon Constitution, an appellate court may not reverse a criminal defendant's conviction based on an error—whether preserved or unpreserved—that is harmless.”). An error was harmless if there is “little likelihood” that it affected the verdict. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). Finally, if an error is both plain and not harmless, we must decide whether to exercise our discretion to correct it. Ortiz, 372 Or at 672.

Assuming without deciding that what occurred here was plain error, we conclude that this is not a case in which we would exercise our discretion to correct the error.³ The Supreme Court has identified a nonexclusive list of factors that may be relevant in deciding whether to exercise our discretion to correct a plain error: “the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court's attention; and whether the policies behind the general rule requiring preservation of error have been served.” Ailes v. Portland Meadows, Inc., 312 Or 376, 382 n 6, 823 P2d 956 (1991). Those factors are not a complete or necessary checklist; however, they are some of the permissible considerations. Id. In deciding whether to exercise discretion to remedy an instructional error, we may also consider whether the parties agreed to a particular jury instruction or possibly made strategic choices not to object. State v. Wiltse, 373 Or 1, 18, 559 P3d 380 (2024).

Here, although out-of-date uniform instructions were being used, defendant did not object to the final set of jury instructions, and he did not raise an objection to the instructions regarding the elements of first-degree rape or first-degree sexual abuse as proposed by the court. Additionally, causation between the use of forcible compulsion and the sex acts in question was not an issue that was actively disputed at trial. Defendant maintained that he never touched the girls sexually and argued that N and C were not credible in their reports of abuse. See id. at 23 (concluding that the gravity of the error weighed against reversal when the erroneous jury instruction related to an issue that the defendant did not actively dispute at trial). No argument was raised that, if the acts occurred, they were not completed via physical force, or that any physical force exerted did not compel the victims to submit to the acts. Finally, in discussing the causal relationship between a sexual act and forcible compulsion in Marshall, the Supreme Court noted that the only logical reading of the term forcible compulsion was that what was “compelled” was the physical contact that was the other element of the crime. Marshall, 350 Or 217-18 (“The question then is: compelled by physical force to do what? Given the wording of the statute, the only possible answer to the question of what is compelled is: to submit to or engage in the physical contact that is the other element of the crime * * *.” (Brackets, quotation marks, footnote, and ellipses omitted.)). In the context of the elements of the crimes at issue here and the definition of what “knowing” meant in relation to each of those elements, we conclude that it is highly unlikely that the jury would not make the same linguistic connection that was identified by the Supreme Court, that what was forcibly compelled was the sex act at the center of each charge. Because we conclude that it is unlikely that an additional instruction on the causal relationship between the acts and the forcible compulsion would have made a difference in the jury's verdict, we conclude that any error was not grave, and therefore we do not exercise our discretion to correct any error.

Affirmed.

FOOTNOTES

1.   Forcible compulsion can also mean to compel by threats. ORS 163.305(1)(b). The theory of the crimes in this case, however, did not include forcible compulsion by threats.

2.   Defendant was also convicted of an additional count of first-degree rape (Count 6) and found guilty of 30 counts of third-degree sexual abuse (Counts 10-39). The court merged a number of the sexual abuse counts, and defendant does not assign error to any of those convictions. The jury additionally acquitted him of two other counts of first-degree rape (Counts 4 and 5) and two other counts of first-degree sexual abuse (Counts 7 and 9).

3.   In Marshall, the Supreme Court noted the causal connection between forcible compulsion and the sexual contact that comprised the charge, and that the state must prove that the forcible compulsion compelled the victim to submit to or engage in the contact. 350 Or at 227. Additionally, prior to the trial in this matter, the Uniform Criminal Jury Instructions (UCrJI) for both first-degree rape and first-degree sexual abuse were amended to clarify that the state must prove that the defendant subjected the victim to forcible compulsion “and that forcible compulsion resulted in” the sex act in question. See UCrJI 1603 (Rape in the First Degree); UCrJI 1611 (Sexual Abuse in the First Degree). For unknown reasons, the trial court in this case used the outdated version of the UCrJIs that did not include the final clause.In a recent nonprecedential memorandum disposition, we concluded that jury instructions that omitted the causal connection between forcible compulsion and the sexual conduct at issue were erroneous, and we reversed and remanded the defendant's convictions. State v. Sanchez, 337 Or App 797 (2025) (nonprecedential memorandum disposition). That opinion, of course, is not binding given its nonprecedential nature. Additionally, there is no indication that Sanchez involved preservation issues, and therefore was not reviewed in a plain error posture. Finally, other factual differences make Sanchez readily distinguishable from this matter, regardless of Sanchez being nonprecedential.

POWERS, J.